WIZAMAN IMPEX PVT. LTD. Vs. KEDRION BIOPHARMA INC.

JUDGEMENT

(1.) Having regard to the short point involved and the contesting parties being represented, we have heard learned counsel for the parties finally at this stage itself.

(2.) By way of this appeal, the appellant-company, said to be the corporate debtor within the meaning of the Insolvency and Bankruptcy Code, 2016 1, has questioned the judgment and order dtd. 15/12/2021, as passed in Company Appeal (AT) Insolvency No. 981 of 2020 whereby, the National Company Law Appellate Tribunal, Principal Bench, New Delhi 2 has set aside the order dtd. 6/10/2020, as passed by the National Company Law Tribunal, New Delhi Bench- V 3 in CP(IB) 841(ND) of 2020 and has also allowed the application moved by the applicant (respondent herein) under Sec. 9 of the Code.

(3.) In its order dtd. 6/10/2020, the NCLT considered the documents referred by the applicant in support of its contention that there had been acknowledgment of debt and thereby the period of limitation would shift from the date of acknowledgment. The NCLT observed that the document dtd. 15/12/2017 was a credit memo, issued by the applicant and not by the respondent and thus, it could not be treated as an acknowledgment of debt. As regards document dtd. 7/7/2016 carrying the signatures of the Director of the Company and addressed to the Bank regarding payment of pending invoices, the NCLT observed that even if the said letter was treated as an acknowledgment of debt, the limitation would run from its date, i.e., 7/7/2016. The NCLT further considered another letter dtd. 2/2/2017 and observed that even if the said document was taken as an acknowledgement of debt, the limitation would run from 2/2/2017. Hence, the NCLT came to the conclusion that, viewed from any angle, the application filed on 30/6/2020 was beyond the period of three years in terms of Article 137 of the Limitation Act, 1963. Thus, the NCLT proceeded to reject the application so made by the respondent.